013 - 2001 - Family Law and Succession

13
FAMILY LAW AND SUCCESSION

Poonam Pradhan Saxena*
I INTRODUCTION
IMPORTANT JUDICIAL pronouncements under Christian law (adoption); Indian

Divorce Act, 1869; Dowry Prohibition Act, 1961; Family Courts Act, 1984;
Guardians and Wards Act, 1890; maintenance under the Criminal Procedure
Code, 1973, section 125; and under Muslim Women's (Protection of Rights on
Divorce) Act, 1986; matrimonial violence under Indian Penal Code, 1860 and
the Indian Succession Act, 1925 have been briefly discussed here.
II VALIDITY OF ADOPTION UNDER CHRISTIAN LAW
Permissibility of retention and applicability of pre-converted customary laws for Christians

who are original converts from Hindu faith
One of the essential features of the multi-religious society is the influence
one religious tenet has over people adhering to other faiths. Though Indians treat
religion with an unmatched reverence, yet conversion (which is also a
constitutionally guaranteed right) to another faith, is not uncommon. Since
application of family laws in India vary depending on the religion of the person,
one of the primary consequences that follows from renunciation of one religion
and conversion to another faith is an automatic change in the application of the
family law for the convert. Due to this religious based application of family
laws, in this complex branch of conflict of personal laws it is worth examining
as to what extent a convert can carry with him the benefits available under the
former religion to the new religion. Can there be a distinction between a born
Christian and a convert Christian so that the unavailability of certain provisions
like adoption to Christians generally can still be availed of by the convert
Christians simply because either they or their forefathers were at one point of
time Hindus? Can we have the system of the application of dual or alternative
laws, a method of pick and choose depending upon the convenience of the
parties? Even when the parties cease to be Hindus can they still retain certain
essentially Hindu concepts of adoption as equivalent to natural birth?
A Christian woman died1 without leaving any issue. Her sister filed an
application for grant of letters of administration of her movable as well as
immovable properties. Her claim was contested by the son of the brother of the
* LL.M., Ph.D., Reader, Faculty of Law, University of Delhi.

1 Ajit Datt v. Ethel Walters, AIR 2001 All 109.
www.ili.ac.in The Indian Law Institute

312 Annual Survey of Indian Law [2001
deceased's husband who maintained that he was the adopted son of the deceased
and her husband and is therefore entitled to the total property. His main contention
was that his ancestors originally were Hindus and were governed by the
mitakshara school of Hindu law. Personal law of custom of the family recognised
adoption of a male child and that the family after conversion carried along with
them their ancestral customary law to the new faith i.e., Christianity. Conversion
only resulted in change of worship and the deceased and her husband adopted
him soon after his birth. *>
All the parties, i.e., the deceased, her husband, the nephew of the husband,
the sister of the deceased and the natural parents of the nephew who allegedly
had given him in adoption were Christians. The law of succession applicable to
the property of Christians is the Indian Succession Act, 1925, (ISA) which does
not recognize adoption for the purposes of inheritance. The sister of the deceased,
therefore, pleaded that the claim of the nephew was invalid as he was not the
next of kin under the rules of succession under the ISA and also because there
was no permission for adoption under the ISA or under Christian law. The trial
court held that succession amongst Christians is not governed by the custom as
alleged by the nephew but by the provisions of ISA and that does not recognise
adoption for the purposes of succession. A division bench of the Allahabad High
Court comprising of G.P. Mathur, and S.R.Singh JJ disagreed with each other on
this issue. The present court held that for the purposes of the case they were not
concerned with the estate of the original owner but the deceased. The appellant
must prove that he was adopted and in a way that the conferment of natural
status was conferred on him.
G.P. Mathur J held that the appellant had failed to prove that the family was
observing the customs of the Hindu community. The evidence of adoption should
be free from suspicion or fraud and so consistent and probable as to give no
occasion of doubting its truth. He also approved the decision in Kamlawati v.
Digvijay Singh,2 wherein it was held that a person who ceases to be a Hindu in
religion and becomes a Christian cannot elect to be bound by the Hindu law in
the matters of succession after the passing of the Indian Succession Act and a
Hindu convert to Christianity is governed solely by the said Act. Thus, the
argument that succession to the estate of an Indian Christian can be governed by
the rules applied to the community to which he belonged before his conversion
to Christianity is not sound.
S.R. Singh J, framed a question amongst others as to whether adoption by
Indian Christians of Hindu origin who are destitute of a son is sanctified by
law—constitutional, statutory or customary - and held that customary law
applicable to Indian Christians before their conversion to Christianity will continue
to govern them in matters not specifically covered by any principle or tenet of
Christianity being professed by the individual concerned provided that such
customs and usages remained in vogue even after conversion. He said that it will
be lawful for a person destitute of a son to adopt a child irrespective of his race
2 AIR 1922 PC 14.

Vol. XXXVII] Family Law and Succession 313
and domicile save where he is forbidden to do so by law or any tenets of his

religion. Such right being inherent in man cannot be taken away except by
authority of law. Thus, adoption by a Christian couple of Hindu origin is an act
which is neither opposed to any public policy nor interdicted by any statutory
law or principle and philosophy of Christianity. It would, therefore, be deemed
to be permitted.
The judgment appears to be a little bit strange. G.RMathur J did refer to the
common law applicable to Indian Christians which expressly prohibits adoption
making parental duties inalienable and untransferable in any manner whatsoever
yet at the same time it looked for additional evidence in detail about the rites
and ceremonies that were observed in this case to find out whether adoption was
validly effected as per the requirements of Hindu Adoptions and Maintenance
Act, 1956. The stand taken by the court is self contradictory. Firstly, if it is
accepted in principle that a person is governed by the family law applicable to
him in accordance with the current religion that he professes then the concentration
should be only with respect to the point whether adoption is permissible under
that law or not. The scrutiny into the facts such as whose name was mentioned
as his father in the school records, service records or in wedding invitation card
becomes totally irrelevant. The court here tried to find out whether there was a
valid adoption as per the requisite ceremonies required under Hindu law which
does not appear to be a correct approach. Even if the deceased had adopted the
nephew after observance of all the requisite ceremonies he would still not be a
natural heir of the deceased for the simple reason that the facility of adoption
is not available to the Christians. Legal rules cannot be altered or be allowed to
tilt and bend according to the wishes or suitability of the people.
Secondly, conversion does not and should not be restricted only to a change
in worship. It for all purposes changes the law of family relations. Religious
places like churches for genuine worship are open to all Indians and people do
not have to convert to another faith simply for offering worship. The very
factum and validity of co-existence of multiplicity of disparate family laws
having certain distinct and exclusive features would be meaningless if people
are allowed to pick and choose provisions of more than one family law according
to their suitability. A person can avail of the provisions of only one family law.
In the absence of statutory permissibility no person should be permitted to retain
at his pleasure a unique provision of his renounced religion when he embraces
a new one.
The pronouncement of S.R. Singh J seems totally incorrect. Does it really
matter what was the original religion of these Christians? The very expression
"Christians of Hindu origin" seems inappropriate. The two communities which
largely contributed to the Christian population in India are Muslims and Hindus.
Irrespective of when Christianity was spread in India, the fact remains that a
majority of Indian Christians would be of either the Hindu or Muslim origin.
Even here the nephew, his parents, uncle and even the deceased were all born
Christians. He claimed that his ancestors (how many degrees removed from him,
it is not clear) were of Hindu origin, and had renounced Hindu religion to
embrace Christianity. When a religion is renounced the application of religious

based family law is also automatically renounced. For how many generations
can a person be allowed to carry his former religion's distinct features would be
a tough question to answer. Each religious law in India has some unique feature
that sets it apart from another family law available to members of other religious
communities. If people despite renunciation of religion are allowed to carry their
former laws according to their convenience it would be extremely difficult to
draw the line.
The judge observed that "in particular it will be lawful for a person destitute
of a son to adopt a child irrespective of his race and domicile save where he is
forbidden to do so by law or any tenets of his religion as this right being inherent
in a man cannot be taken away except by authority of law. Thus, adoption by
a Christian couple of Hindu origin is an act which is neither opposed to any
public policy nor interdicted by any statutory law or principle and philosophy of
Christianity, it would therefore be deemed to be permitted."
The only law permitting adoption and treating it at par with natural birth to
create mutual rights of inheritance between adopted child and his parents is the
law governing the Hindu community. Hindu Adoptions and Maintenance Act
clearly says that only a Hindu can give a child in adoption; only a Hindu can
adopt and only a Hindu child can be adopted. Hindu Succession Act also provides
that the expression son includes an adopted son. These statutory injunctions are
sufficient indications of non availability of these provisions to Christians whatever
their origin may be. Secondly, simply because a person has an inherent right or
his act would not be opposed to public policy would not give him a legal
permissibility to do an act that he is otherwise not authorized to do. For example,
every woman has an inherent right to be economically secure. Under Muslim
law a woman is entitled to mahr amount from her husband . The payment of this
sum is neither opposed to public policy nor illegal but is a distinct feature of
only Muslim law and consequently available only to a Muslim woman married
under Muslim law. Can a Muslim woman who converts to Christian faith
claim mahr from her husband? Can she demand its fixation and later its
payment through the process of law on the ground that such an act is also
not expressly forbidden in Christian law? The answer to that would be in
the negative.
What appears to be a simple facility of adoption by a childless couple in the
absence of statutory rules can lead to endless confusion and exploitation of
children themselves. If a Christian is allowed to adopt a child in absence of
guidelines how would the court ensure that this facility is not misused? How
many children can a Christian take in adoption, of what sex, of what age, what
would be the status of this adoption, revocable or irrevocable; can a man of 25
years take a girl of 16 in adoption; can a single man adopt, or only married man;
is adoption an inherent right of a man or can it be at the discretion of the
orphanage or the parents of the child to be adopted; who can give a child in
adoption—father with or without the consent of the mother, the uncle or aunt in
the absence of the parents or even the neighbours? These are the questions that
can be answered only through a legislation providing for regulation of adoption.
In absence of such a legislation by no stretch of imagination can it be validly

said that Christians are allowed to adopt, least of all on the plea of retention of
the custom of their forefathers even after their express renunciation of
Hinduism.
Ill INDIAN DIVORCE ACT, 1869
Constitutional validity of section 10

The legislation has finally put an end to what perhaps was the most
challenged provision under the pre-amended Act, by a statutory modification
making it equitable and at par with the grounds of divorce available under
other matrimonial legislations. The constitutional validity of section 10 was
challenged this year also3 but met the same fate as challenges to family law
provisions usually do. There was extreme reluctance on part of the court to
declare them void despite an earlier full bench decision of the Bombay High
Court modifying the usual strict interpretation of section 10 on a challenge
to its constitutional validity by a Christian wife.4 The court had held that if
the husband was permitted to seek dissolution of marriage on grounds of
wife's adultery simpliciter but the wife was required to prove another ground
besides husband's adultery that in itself would make the section void. Rather
than striking down the whole of the section as void the offending portions
of the impugned provisions which were severable were to be struck down and
other provisions of section 10 which were not discriminative or violative were
to be retained. The full bench had observed that in a modified form section 10
would permit Christian wives to seek dissolution of their marriage on grounds
of adultery, desertion and cruelty also without the necessity of proving adultery.
If such a course is adopted the provisions can be made constitutionally valid and
retainable in the modified form.
In the present case the husband filed a petition for divorce on wife's cruelty
and the wife contended that this ground was not available to a Christian husband
under the IDA. Relying on the earlier division bench judgment,5 the husband
took the plea that section 10 of the Divorce Act is constitutionally void as it
violates articles 14, 15 and 21.
According to the modified section, if the husband is guilty of cruelty the
wife can obtain divorce from him, but if the wife is guilty the husband has no
remedy to obtain divorce, as the only ground available to him is wife's adultery.
The husband contended that even in the modified form as per the division bench
judgment, section 10 violates article 14, as it provided only one ground to the
husband and six independent grounds to the wife, which amounts to discrimination
on grounds of sex.
The court held that even assuming that there is some substance in the
grievance that section 10 of the Act as it stands makes a discrimination in the
matter of grounds of divorce between a Christian husband and a wife, they (the
3 Henry Fernandes v. Succorinha Fernandes, AIR 2001 Bom 208.

4 Pragati Vergese v. Cyril George Vergese, AIR 1997 Bom 349.
5 Supra note 3.

court) had no power to introduce into the section a ground which the legislature
did not contemplate. They observed.6
From 1869 till today, the only ground available to the husband under
the Act is the ground of adultery. The second portion of Sec. 10 deals
with "When wife may petition for dissolution" and contain several
grounds, some of which were struck down. Even assuming that the
remainder of Sec. 10 after the exercise carried out by a full bench is
considered to be discriminative against the Christian husband, it is not
open to us to read into Sec. 10 any ground other than the ground
provided by the Legislature. In view of the matter it is unnecessary to
contend that the section is discriminatory of rights between a Christian
husband and wife....There may be several reasons why the law permits
dissolution of the marriage at the instance of the Christian husband only
on the solitary ground of adultery. Perhaps Christian women are never
cruel to their husbands, for they are "Christians". Assuming that there
is any discrimination, the discrimination at all would be in favour of
women, which is perfectly valid and permissible in view of Art. 15
(3) Therefore we decline to go into the constitutional issue raised
by the Mr. Bhatt (Husband's counsel).
Thus, holding that the husband here was not entitled to seek dissolution on
grounds of his wife's cruelty the court dismissed the petition of the husband.
What perhaps is amazing is the reluctance of the courts to declare a provision
of personal law as unconstitutional despite its offending the very spirit of equality
provisions under the Constitution. When the division bench held that the husband
is entitled to get a dissolution on grounds of wife's adultery but the wife is not,
and this amounts to discrimination, they felt the need to modify the provision.
Similarly, if the wife is entitled to get a divorce as per the modified provision
on grounds of husband's cruelty and the husband is not, it again would be
discrimination. To cover it under the permissibility of affirmative action in favour
of women coupled with it the observation of the judge that "perhaps Christian
women are never cruel to their husbands" would seem a little too far fetched.
Human nature can never be generalized on grounds of religion. What the wife
contended here was not that she was not cruel to her husband but that he is not
entitled to get divorce on grounds of her cruelty due to non availability of this
provision under the Act. It is like adding insult to injury when on a petition
coming from a husband who was forced to go to the court on account of his
wife's cruelty, the court without going into the merits of the case opined that
Christian wives would never be guilty of cruelty. Does that mean that the reason
why the husband who has been conferred a right to go to the court against his
wife on ground of her adultery alone, it would be common for Christian wives
to lead an adulterous life? Or the reason why two independent grounds were to
be proved by the wife under the unmodified provision imply that Christian
6 Id. at 209-10.

husbands can never be adulterous? The mere fact that cruelty now has been
introduced by the recent amendment to the IDA as a ground for divorce available
to the husband would belie the claim of the judge in the present case. Even
otherwise the judiciary should refrain from making such sweeping statements, which
are totally inconsistent with human nature be it of the husband or the wife.
Objections relating to jurisdiction of the court

Under the Act, a petition praying for the dissolution of marriage or for its
annulment can be filed at the high court or the district court within the high
court where the parties last resided together. Objections or contentions regarding
jurisdiction of the court must be taken at the earliest possible opportunity and
are not allowed to be pleaded after the evidence of one of the parties closes.
Section 21 of the Civil Procedure Code, 1908 also provides that no objections
with respect to the place of institution of suit shall be allowed by any appellate
or revisional court unless such objection was raised in the court of first instance
at the earliest possible opportunity and in all cases where issues are settled at or
before sucb. settlement and unless there has been a consequent failure of justice.
In Shajan TI v. Biny Mathew1 the petition was filed by the wife in a court of
law for annulment of her marriage as her consent to the marriage was obtained
by fraud. The husband filed a counter affidavit and contested the petition. The
wife gave her evidence and a number of witnesses were examined. After the
closure of the evidence the husband filed an application challenging the jurisdiction
of the court and prayed that the question of jurisdiction should be heard as a
preliminary issue. His main contention was that as the husband and the wife last
resided together at Bangalore the courts in Kerala did not have the jurisdiction
over the matter and the case. The court dismissed the petition of the husband on
two grounds: firstly, that the objections with respect to the jurisdiction were
raised by him after the closure of the evidence of the wife and not at the earliest
possible opportunity. Secondly, the marriage of the parties was solemnised at
Kerala. The wife had pleaded that her consent was obtained by fraud. The court
held that the place where her consent was obtained was the place of solemnization
of the marriage and therefore the cause of action arose at Kerala and the courts
at Kerala had the jurisdiction to try the case.
Grounds for divorce under the pre-amended Act

Under the pre-amended Act if a Christian wife were to obtain divorce from
her husband it was incumbent on her to prove the existence of two distinct
matrimonial grounds against the husband. Here the wife8 filed a suit praying for
a decree of divorce on ground of husband's cruelty and desertion. Married in
1986 in India the spouses left for Saudi Arabia where the husband was employed.
Husband had a penchant for gambling, had borrowed heavy sum of money but
could not repay the creditors who would knock at the doors of their house
making the wife very insecure. The husband also cheated his company to the
AIR 2001 Ker 350.

Lini Mohan v. Mohan John, AIR 2001 Ker 309.

tune of SR 1,36,000.00 and absconded from that place with a forged passport.
During their stay in Saudi Arabia, he would lock the wife from outside to go for
gambling and would return only in the morning. In the high temperature of 50
degrees they lived without an air conditioner and telephone and the wife was
totally cut off from the rest of the world. He demanded and took Rs. six lakhs
from his father-in-law in addition to the Rs 3 lakhs that he had taken at the time
of the marriage and threatened him that unless the money was paid to him he
would send his daughter back to India. After coming back to India, the husband
did not contact the wife nor lived with her nor did they cohabit with each other
for over ten years since their child was born. The court was satisfied that the
wife established both cruelty and desertion and granted her divorce despite
opposition coming from the husband who wanted to retain the marriage.
Damages awarded for matrimonial offences committed by the spouses

Commission of matrimonial misconduct can not only lead to break up of the
marriage but can also be an expensive proposition for the guilty party. In two
cases the courts awarded damages to the aggrieved party on account of cheating
and fraud of the guilty spouses. Where the husband proved conclusively adultery
committed by his wife; named the paramour, but the wife and the paramour
failed to prove the cross allegation of motive on his part the court while granting
divorce also granted damages of Rs. 50000/- to the husband.9
In another case10 the parents knowing that their son was impotent arranged
his marriage and the same was suppressed from the wife. The husband after
marriage distanced himself from the wife and even after living together for a
period of 10 months and 2 days the marriage could not be consummated. The
wife filed a petition for nullity of marriage and claimed exemplary damages
worth Rs. 15 lakhs. Basing her claim on the mental agony that she suffered on
account of a deliberate suppression of a material fact relating to the husband by
him and his parents, she contended that she was cheated by them and they
should therefore be asked to compensate her by paying damages. The trial court
granted dissolution of marriage on ground of husband's impotency and awarded
her damages of Rs one lakh. The court held that both the defendant and his
parents knew about the impotency of their son yet went ahead with his marriage
and were therefore guilty and liable to pay damages. The wife contracted another
marriage but this did not absolve the husband from paying damages to her for
causing mental agony and cheating. In both cases the awarding of damages and
its quantum was confirmed by the high court.
IV DOWRY PROHIBITION ACT, 1961
Mere demand of dowry prior to marriage is an offence

Mere demand of dowry before the solemnization of a marriage would be
punishable under the Dowry Prohibition Act (DPA). The parties11 had a love
9 Sunil Masih v. Elizabeth Daisy Masih, AIR 2001 MP 226.

10 Augustine v. Kunjamma Kuriakose, AIR 2001 Mad 480.
11 Pandurang Shivram Kawathkar v. State of Maharashtra, 2001 Cri LJ 2792 (Bom).

affair and the groom demanded Rs. 20000/- from the girl's father for marrying
her. Though the father had filed the FIR after a delay of 13 days, his explanation
that he was hoping that the marriage would be solemnized was accepted by the
court. The case shows the desperation of the parents of the girl, who despite the
dowry demands still hope that the marriage may materialize and would not want
to file a case for fear of spoiling the relations with the bridegroom. The reality
that this demand may continue and may lead to horrendous consequences does
not deter them to go ahead and marry their daughter of to the dowry seekers.
This imaginative possibility of improvement of relations and the ceasing of
demands with the passage of time are perhaps the real reasons why girls continue
to be pushed into marriage with men who openly demand dowry as a matter of
right. Despite the demands the father of the girl in the instant case still hoped
that the marriage might be solemnised and the court also accepted it as a perfectly
natural behaviour. It was only when it became apparent to the father that the
marriage would not be solemnized that he filed an FIR against him for demanding
dowry. The court held that notwithstanding the fact that the marriage was not
performed, mere demand of dowry would be an offence, as that is covered under
the expression "before the solemnization of marriage" under the DPA and
convicted the accused for demanding dowry.
Restoring the property of the deceased to her relatives

Section 3A of the Act provides for restoring the property of a married
woman who has been a victim of dowry death to her relatives. However, in
many a case after the woman's death the effort is to have the guilty punished and
in the bargain the property of the deceased is often retained by the accused. The
courts also seldom pass orders with respect to restoration of her property to her
parents. The wife here12 died of burns. Married for two and a half years she was
forcibly dragged by the husband, his brothers, sisters and parents to the bathroom
of their house where the husband poured kerosene over her body and set her on
fire. When she screamed in pain, the accused themselves put out the fire, changed
her clothes and took her to the hospital. In the statement to the doctor she said
that she was harassed for dowry and described in detail the incident both to the
doctor as well as to the police in the FIR. Trial court awarded a punishment of
seven years rigourous imprisonment under sections 304 B and 498A IPC and
DPA to all the accused but no order was passed to restore the subject matter of
dowry back to her parents. The Karnataka High Court noted that the omission
to issue necessary directions for restoration of property to the parents or other
legal heirs of the deceased irrespective of the punishment awarded amounted to
a grave miscarriage of justice. Permitting the wrongdoers to return the tainted
money or property constituted not less than an unjust enrichment. The law does
not permit or tolerate this position. As the property had not been transferred to
the deceased wife during her lifetime and was still in the hands of the accused
the court held that it was necessary to bring it to the notice of the trial courts
12 Siddesha v. State of Belur, Police, 2001 Cri LJ 38 (Kant).

and that keeping with the provisions of the DPA, a simultaneous order must be
made for the restoration of the whole of that property that was the subject matter
of the dowry. The accused were asked to hand over Rs. 10,000/- and the jewellery
of the wife to her parents.
Harassment in connection with dowry—a pre-requisite for application of DPA

Dowry Prohibition Act was passed with a view to put an end to the evil of
dowry practice prevalent in our society and to protect young married women
from harassment they may face in connection with dowry demands. Thus,
demands of dowry or harassment in connection with dowry is a pre-requisite for
the application of the Act. Matrimonial violence other than dowry related
harassment would not therefore be sufficient to attract the application of DPA.
In a very tragic case of Tejinder Kaur,13 a mother of two and a double graduate,
ran in front of a running train in a bid to finish her life and put an end to her
miseries once and for all. But her misfortune pursued her and she did not die but
suffered grievous injuries. It left her without her left hand from the shoulder
joint, along with a ruptured spinal cord making her into a paraplegic and a living
corpse. The trial court convicted her parents-in-law and her husband for abetment
to commit suicide with rigourous imprisonment for two and a half years and a
fine of Rs. 10000/- each. The high court raised the sentence to five years. The
sentence of all the accused was, however, reduced by the Supreme Court to the
period already undergone in the prison but each one of them was asked to pay
a compensation of Rs 1 lakh to the victim failing which they were to undergo
rigourous imprisonment for another period of nine months.
Married in 1992, to a business man, she stayed with her husband and parents-
in-law who harassed her for two and a half years for not bringing a car and a
house as part of dowry. During this period she give birth to two sons. What
prompted her to commit this act was the incident that took place a night before.
When she served food to the family there was excessive salt in the salad, which
according to her was put in by her mother-in-law. Her husband was infuriated
and showered abuses on her and was joined by the mother and later by the father
as well. They taunted her that she should come in front of the running train. She
got up at 4'o clock in the next morning, stood before the coming train and was
disabled for life. Her testimonial capacity was not seriously impaired and she
gave her testimony herself.
It was held rightly that section 304 B would not be applicable to this case
as the immediate provocation for attempt to commit suicide was not related to
dowry and there was no death of the woman.
But what the court laid down as a rule is questionable. The court stated that
there are three occasions as regards dowry. One is before the marriage, second
is at the time of marriage and the third is at any time after the marriage. The
third occasion may appear to be an unending period. But the crucial words are
"in connection with the marriage of the said parties." This means that giving or
agreeing to give any property or valuable security on any of the above three
13 Satvir Singh v. State of Punjab, AIR 2001 SC 2828.

stages should have been in connection with the marriage of the parties. There
can be many other instances for payment of money or giving property as between
the spouses. For example, some customary payments in connection with birth of
a child or other ceremonies are prevalent in different societies. Such payments
are not enveloped within the ambit of "dowry". Hence the dowry mentioned in
section 304B should be any property or valuable security given or agreed to be
given in connection with the marriage.
It must be remembered that these occasions are no less important than
actual solemnization of marriage in terms of expectations of payment of money
and valuable security from the bride's parents. How is it that all these customary
payments are made from the bride's parents to the groom's family? The very
acknowledgment with approval of these payments by the Supreme Court is
alarming. Even dowry is very much a customary payment. To isolate it from
other payments is neither possible nor desirable. All customary payments or
demands of money before and after marriage where money is paid or expected
to be paid by the bride's parents are the very payments that create problems for
her. Because these are the payments which are consistently compared with the
payments made by parents in relation to the birth of their daughter's children in
either the neighbourhood or among other relatives of the family. It is due to
these payments or lack of them that maximum taunts and torture are inflicted on
the girl sometimes forcing her to take her life. Excluding them from the ambit
of "dowry" would render the scope of the term dowry very narrow. The expression
"at any time subsequent to the marriage" used in DPA refers to situations where
pursuant to prevalent customs the husband's family expects money or valuable
security to come from the wife's parents and when the actual amount paid does
not match the expectations the family inflicts its irritation and frustration on the
wife.
With respect to the expression "soon before her death" the court held and
rightly so that there has to be a nexus between dowry related harassment and her
death. In other words her death should be the aftermath of the dowry related
harassment within a few days or few weeks before it. She had testified that in
November her father had paid Rs. 20000/- to her husband to pacify him. She
tried to commit suicide in June 1996, seven months after the payments. Even if
it is presumed to be part of the three year old demand of dowry, the Supreme
Court concluded and rightly that the attempt was not a result of dowry related
harassment. However, the court's observation that the money paid by her father
five months after the birth of the second child and also all moneys paid by him
cannot be termed as dowry appears to be incorrect.
Five years for maiming a young woman for her entire life. The judge noted
that the in-laws have crossed the age of 70 years but nothing relating to the age
of the husband was mentioned nor any reasons as to why his sentence was also
reduced.
Death by burns
The courts continue to be unmoved by the death of young girls as besides
recording their concern for their deaths they hesitate to punish the perpetrators.

It is difficult to prove in many cases the nexus of dowry demands and the death
of the girl by burning. In such situations the facts accepted by the trial court
should normally be accepted by the higher judiciary, which does not happen in
many cases. In cases of unnatural death of married women within seven years
of her marriage with preponderance of evidence indicting husband as the culprit,
the courts should not proceed on the assumption of his innocence till he is
proved guilty beyond reasonable doubt by the prosecution. Rather he should be
presumed guilty and be asked to explain to the satisfaction of the court that he
had no hand in the death of his wife. In Arvind Singh v. State ofBihar,u a young
married woman died of burns and the trial court held that the case is covered
under sections 304 B, 498A and 120B and awarded imprisonment for life to the
husband, his brother and his mother. The high court on appeal converted the case
to section 302 and convicted the husband to life imprisonment and acquitted the
rest. The Supreme Court acquitted the husband and accepted the contention that
the death had occurred due to stove burst when she had gone to warm the milk.
In another case15 before the Supreme Court within four years of marriage the
wife died of burns. The husband maintained that she sprinkled kerosene on her
body and set herself on fire. Meanwhile, twice or thrice she told her mother
about the demands of dowry made by the husband and that she was ill-treated
and harassed by the in-laws on this account. The immediate cause of the suicide
committed by the wife according to the husband and accepted by the high court
was that he brought girls of doubtful character at home who harassed her. Both
the lower court and the high court held the husband guilty of committing an
offence under section 304B. In appeal the Supreme Court held that the death of
the wife was not in connection with dowry and therefore section 304B could not
be proved and acquitted the husband.
State of Karnataka v. Thippeswamy*6 was another ghastly case where a
pregnant bride was set on fire by her husband and ultimately succumbed to her
injuries but the high court held that the accused will go scot free due to the
cardinal error committed by the trial court in not framing the charges under
sections 498A and 304B and framing charges only under section 302. The girl
had died within five months of the marriage of hundred percent burns and in her
dying declaration had made a statement that her husband had poured kerosene
over her and set her on fire. Acquitting the husband the court said, "the facts of
this case are a poignant reminder as to what should never happen and yet is
happening with eerie recurrence." Trying to fix the responsibility the court looked
for possible culprits among (1) the society which cannot get rid of the dowry
system in spite of stringent laws; (2) the trial court which did not frame charges
for offences under sections 498A and 304B in spite of ample materials; (3) the
police who did not file a charge sheet for offences under sections 498A and
304B on the materials placed before it—and concluded that in their view all of
them were partly responsible in some measure.
14 2001 Cri LJ 2556 (SC).

15 Sunil Bajaj v. State of M.P, AIR 2001 SC 3020.
16 2001 Cri LJ 2704 (Kant).

The court acquitted the accused but granted Rs. 30000/- in all as solatium
to the father and mother of the deceased up respectively.
Rather than expressing their helplessness the court should have explored the
options to do justice. If they were convinced that it was a ghastly case and that
the husband was guilty they should not have thrown up their hands in despair.
The case could have been remanded to the trial court with an appropriate direction.
The higher courts have time and again relaxed the rules; interfered with the fact
finding of the trial court and given their own interpretation to the chain of events
contrary to the one accepted by the lower courts to give the benefit of doubt to
the accused husbands to let them off. Thus, in cases where they are convinced
of the husband's guilt they should likewise convict him when the evidence
clearly demonstrates his hand in the murder of his wife. Technicalities should
not be allowed to come in the way of dispensing justice which is the primary
aim of the judiciary. Acquitting the guilty and taking shelter behind the error
committed by the lower judiciary is improper and uncalled for and can send
wrong signals to the criminals that here is an offence that can go unpunished for
a variety of reasons some of which may not be difficult to manipulate to their
advantage. The outcome of the case is tragic and is not going to restore the
already dwindling faith of the common man in the judiciary.
V FAMILY COURTS ACT, 1984
Counselling by the family counsellors

The Family Courts Act was passed to provide an alternate forum for the
parties facing matrimonial problems needing a sensitized and not a mechanical
handling of their cases. The parties already undergoing the stress of a strained
relationship require a healing touch and an efficacious solution to their problems
with a patient therapeutic hearing by trained personnel and not merely a technical
interpretation and application of statutory principles. Thus, the rules under the
Act make the provision for presiding officers to seek assistance of trained marriage
counsellors. The counsellor is entitled to interview relatives, friends and the
parents of the child, or acquaintance of the parties including the minor child and
may be requested by the court to submit the report in cases of the custody of
child on submission of which the court can pass necessary orders after notice to
the parties. The question arose in a case17 whether the presence of the parties at
the time of the interview was necessary and would their absence affect the case
vitally? In the instant case, the wife approached the family court for seeking
maintenance for the child who was with her for the past three years. The father
did not bother to take care of the child but soon after the maintenance petition,
he filed a counter petition claiming the child's custody presumably to evade payment.
At the time of the interview by the counsellor the father was not present.
The counsellor submitted a report and he raised an objection that no order could
be based on this report as it was prepared on the basis of an interview in his
absence. Rejecting this objection the court held that neither the presence of the
17 Ashok Shamjibhai Dharod v. Neeta Ashok Dharod, AIR 2001 Bom 142.

mother nor the absence of the father influenced or affected the balanced report
of the counsellor.
Interpretation of the term "family" and jurisdiction of family courts

Strangely, the Act titled Family Courts Act nowhere defines the term "family".
An important question arises as to whether the courts can decide disputes relating
to or between family members or the jurisdiction of the courts is narrower than
that and is limited to disputes only between husband and wife. The preamble18
indicates that the purpose of enacting family courts was to promote reconciliation
in and secure speedy settlement of disputes relating to marriage and family
affairs and for matters connected therewith. In an Andhra case19 a sister filed a
case against her brother for the partition of the property left by her father. The
court said that the essential ingredient regarding the jurisdiction before the family
court should be a dispute between husband and the wife and the said dispute can
be with regard to their marital status, divorce, restitution of conjugal rights,
judicial separation, child custody, maintenance as also property sharing. In such
cases even former spouses can avail the jurisdiction of the family courts.20
After tracing section 7 in detail the court held21 that by no stretch of
imagination can the family court assume jurisdiction if there is a dispute between
the brothers, sisters, mothers and fathers etc concerning property and thus the
family court had no such jurisdiction to try this case. The term "Family Affairs"
in the preamble according to the court should be read as matrimonial affairs.
Therefore, the suit by sisters against the brothers for partition of their father's
property was held as not maintainable before the family courts.
VI GUARDIANS AND WARDS ACT, 1890
Welfare of the minor as of primary importance

In deciding the petitions relating to the custody and guardianship of minor
children the primary consideration is the welfare of the child including undisturbed
company of one parent.22 The courts have distinctly leaned towards the natural
parents in comparison to old grandparents and other relations of the child. Even in
cases of spousal conflicts vis-a-vis each other of such a grevious nature that one of
them commits suicide and the other faces investigations on this account, the suitability
of the surviving parent to be a fit guardian cannot be doubted. Thus, where the
mother of the minor children committed suicide and the husband at one time
faced investigations with respect to that he was still found to be competent.23
The court while granting him custody of the children observed:23"
18 Id. at 170.
19 P Srihari v P Sukunda, AIR 2001 AP 169.
20 AMannan Khan v. The judge , Family Courts, Hyderabad, AIR 2001 AP 163.
21 P. Srihari, supra note 19 at 171.
22 Bhupinder Singh v. Kanchan Rani, AIR 2001 HP 16.
23 Manchala Hushikesh v. Terala Pradeep Kumar, AIR 2001 AP 365; see also K. Mathivan v.
R. Jayalakshmi, AIR 2001 Mad 103.
23a Id. at 368.

In considering the question of the welfare of the minors due regard has
of course to be paid to the father to be the guardian and also to all the
relevant factors having a bearing on the minor's welfare. There is a
presumption that a minor's parents would do their very best to promote
the children's welfare and if necessary would not grudge any sacrifice
of their own personal interests and pleasure. This presumption arises
because of the natural selfless affection normally expected from the
parents for their children.
Where there is no dichotomy between the fitness of the father to be
entrusted with the custody of his minor children and considerations of
their welfare, the father's fitness has to be considered, determined and
weighed predominantly in terms of the welfare of his minor children.
In another case24 the husband committed suicide due to persistent quarrels

between him and his wife and the case was still on against the wife and her
father. She had the custody of her daughter and applied for the custody of the
son who was with the paternal grandmother. Negating the claim of the
grandmother who was 60 years old and pronouncing mother as the better guardian
of the two, the courts held that the earlier quarrels between the spouses would
not have any bearing on the case involving the custody. The mother had a
regular job and the son would have the company of his sister while the mother
would be away for work.
Appointment of guardian of minor when minor has undivided share in joint family property
The courts should demonstrate a practical, instead of a technical approach,
in matters requiring a special and sensitive touch. The father of a three-year-old
girl died leaving behind a share in the ancestral property.25 The mother and the
minor were thrown out of the house after ill-treatment by the husband's brother
and his wife who retained minor's share in the property with them. Later the
mother remarried and started living with the second husband. A petition was
filed for claiming maintenance on behalf of the minor by his maternal grandfather
who was interested in taking care of the minor and was also found to be capable
to do so by the court. As a counter to this, the paternal aunt, the deceased
father's brother's wife, filed an application for appointment as guardian. She
contended that she and her husband would be in a better position to bring up the
child in accordance with the family traditions, as they were young and the
maternal grandfather was an old man. At the time of filing of the petition the
minor was six years old and had a share in the ancestral property. The court held
that according to section 12 of the Guardians and Wards Act, where the minor
has a share in the undivided property which is being managed by a male member
of the family, no other person can be appointed as guardian of property of the
minor. This provision, in court's opinion, went against the grandfather of the
child and consequently he was appointed guardian of person of minor but the
24 Balbir Kaur v. Smt Jit Kaur, AIR 2001 P&H 124.

25 Sweta v. Dharma Chand, AIR 2001 MP 23.

326 Annual Surrey of Indian Law [2001
paternal uncle was appointed guardian of the property of the minor.

The court could have made here a distinction between the rigid application
of the law under section 12 of the Act and permissibility of reasonable
interpretation of the provision. Where, a person's unfitness to take care of the
interest of the minor has been amply demonstrated he should not be appointed
as the guardian of the property of the minor. The uncle by his conduct had
shown that he was not interested in taking care of the minor. Even where the
minor had a share in her father's ancestral property she was thrown out of the
house by this paternal uncle who now claimed guardianship after a period of
three years when a maintenance petition was filed on her behalf. To entrust such
a person even with respect to the property of minor does not seem to be a logical
conclusion. Section 12 was intended not to disturb the family property by
appointing a different person as the guardian where the minor had a share in the
joint family property which was being managed by a male member of the family.
This was done with a presumption that the male member would act in the best
interests of the minor and the partition of the property or an unnecessary
interference and complications arising out of the appointment of a different
person as a guardian of property of minor would be detrimental to the interests
of the joint family as well as the joint family property. But in cases where it is
proved to the satisfaction of the court that the person managing the share of the
minor acted adversely against the minor's interests, the court must exercise its
discretion and should not appoint that very person as the guardian of the property
of the minor whose only interest in the minor is the property and not her welfare.
In judging how the interests of a six year old vulnerable child can be
protected, technical rules aimed at either conservation of the property or the
convenience of its management must give way to the welfare of the child. How
best can the interests of this minor be served should be of primary importance
for the judiciary. A minor needs special protection. Her interests cannot and
should not be sacrificed for the convenience of perpetuation of traditional concepts.
The court should have ordered for the partition of the property and handed over
the share of the minor to the maternal grandfather and appointed him as the
guardian thereof. In trusting the very people whose interest in grabbing minor's
share was amply demonstrated the courts do not seem to have done justice. This
is exactly what the paternal relations had done earlier, though illegally.
There is another side of this case. Though it is not clear form the facts, it
is apparent that the parties are Hindus and living in Madhya Pradesh. The very
fact that the father had a share in ancestral property shows that the family was
adhering to mitakshara school of Hindu law. The facts show that the property
in which the father had a share was the ancestral or coparcenary property, and
according to section 6 of the Hindu Succession Act, where a man dies leaving
behind an undivided share in the ancestral property and class I female heirs
surviving him, it is to be presumed that he died after asking for partition of his
share in the undivided property ; his share would be ascertained; partitioned and
handed over to all his class I heirs in this case the wife and the minor daughter
(and not to the brother) in accordance with the laws of inheritance. This is an
automatic partition and there would be no question of application of section 12

of the GWA for the simple reason that there would not be any joint family
property as far as the minor's share is concerned. The share of the minor would
constitute her separate property in this case illegally retained by the paternal
uncle. The Supreme Court has also held in Gurupad v. Hirabai26 that on the
death of a coparcener leaving behind an undivided share and class I female heirs
the fiction of notional partition has to be applied and the share of the deceased
coparcener is to be divided and handed over to his class-I heirs. They cannot be
retained by the brother. This is exactly what section 6 aims at. Retention of the
joint property by the male members in case one of the joint members dies
leaving behind only female heirs is not permitted in law after 1956. Further,
even remarriage of the widow does not operate as a forfeiture on her right to
succeed to the property of her husband including the share in the ancestral
property and both the mother and minor daughter should have been handed over
the property by the uncle who has illegally kept them and was seeking judicial
protection to continue his hold over it.
The only instance where the minor can have an undivided share in the
ancestral property on the death of the father would be the cases where he dies
without leaving a class I female heir or son of a predeceased daughter and the
minor happens to be a son. In case of a female child her share can never be an
undivided share in the sense it is described under section 12 of GWA. A glaring
error of law has been committed here in not looking at this case from this angle.
No provision of an enactment can be applied in isolation. Even if it was essentially
a guardianship issue, it arose due to three factors: (a) due to the death of the
father; (b) because he left behind a share in the ancestral property that passed
on to the minor daughter, and; (c) the paternal uncle continued the management
of the property and wanted to retain his hold over it.
The technicality of section 12 applies when the minor has a share in undivided
property. But the death of the father would bring about an automatic severance
in the undivided property and it no longer qualifies to be called an undivided
property. The expression undivided does not mean undivided physically for
convinience sake or in ignorance of law or undivided deliberately due to adoption
of dubious means. It was not an undivided share and therefore those persons
who earlier had not only shown a lack of concern for the minor but had actually
acted against her interests were given the management of her property by the
court. It suited the paternal relations perfectly but was clearly detrimental to the
interests of the minor.
VII MAINTENANCE
Under section 125 Criminal Procedure Code, 1973
Plea of no means to pay

The liability to pay maintenance to the wife arises out of the marital
obligations and not merely contractual obligations and therefore the plea of no
26 AIR 1978 SC1239.

means to pay has to be rejected at the very outset. In H.C. Mohan v. Sulochna27
the wife applied for maintenance and was awarded the same by the court. When
the arrears were not paid she applied for execution and arrest warrants were
issued against the husband, as he did not respond. He pleaded inability to pay
and wanted to lead evidence to establish the same. Rejecting his contention the
court held that even granting any opportunity for leading evidence to establish
no means to pay also does not arise.
"Wife includes an ex wife"

The term "wife" includes a divorced wife who is not remarried.28 The husband
is bound to maintain his ex-wife irrespective of the fact that he obtained divorce
on grounds of wife's desertion29 including cases30 where the wife is alleged to
have relinquished her claims of maintenance under a deed of divorce but on
which her signatures were obtained by force. The husband would not be absolved
from maintaining her as she is not bound by the deed of divorce or by such
forced relinquishment. But where divorce was granted to the husband on grounds
of wife's adultery, the continuation of her adulterous conduct even after divorce
would operate as a forfeiture on her right to claim maintenance from her former
husband.31
Effective date of order of maintenance

The question whether the date from which maintenance is to be awarded
should be from the date of application or from the date of order depends upon
the discretion of the court, which they have to exercise judiciously and not
arbitrarily. Law normally requires maintenance to be paid from the date of the
order and reasons are to be recorded if it is awarded from the date of the
application. The reasons can be the dilatory tactics, adhered to by the husband
in disposing of the proceedings or untold cruelty perpetrated against the wife. In
the absence of recorded reasons the appellate court may modify the order and
direct that maintenance be paid from the date of the order.32 In an Andhra
Pradesh case33 maintenance was granted from the date of application as the
husband had levelled charges of adultery against the wife but failed to prove
them. In another case34 it was remanded to the family court for a fresh
consideration of the point whether the order should be from the date of application
or from the date of the order.
Right of parents to seek maintenance from children

There can be no yardstick to measure the love and affection and parental
27 2001 Cri LJ 1816 (Kant).

28 Prabhavati Nivrutti Patil v. Nivrutti Kashinath Patil, 2001 Cri LJ 1989 (Bom).
29 Ramavtar Sharma v. Santosh, 2001 Cri LJ 2650 (Raj).
30 Kaushalyabai Dinkar Mule v. Dinkar Mahadeorao Mule, 2001 Cri LJ 2292 (Bom).
31 Shyamdeo Prashad v. State of Bihar, 2001 Cri LJ 2818 (Pat).
32 Samaydin v. State of U.P, 2001 Cri LJ 2064 (All).
33 Dasyam Elizabeth Rani v. Dasyam Pradeep Kumar, 2001 Cri LJ 47 (AP).
34 Karnal Kishore v. State of UP, 2001 Cri U 924 (All).

care but can an alleged neglect in performing parental duties towards children
to their satisfaction result in forfeiture of a right of the parents who are in need
of financial assistance to claim maintenance from their earning children? Under
the Act a person is under a legal obligation to maintain his or her parents who
are unable to maintain themselves. In the case of more than one earning child
can the parents proceed selectively against one of them to enforce their rights
of maintenance? In the case under review,35 the mother had no income of her
own and was surviving on the meager income of the husband who was a
diabetic patient and had to spend a lot of money on his medicines alone. In
contrast the son and his wife were gainfully employed and were in good
financial condition. The son contested the maintenance petition of the mother
filed in the family court on three grounds: Firstly, that maintenance of the
mother is the primary responsibility of the father and not the son, as the father
was receiving pension she can no longer claim maintenance from him; secondly,
she has two more sons and one of them has substantial income and thus it is
not his sole responsibility to maintain the mother; and thirdly, that the parents
did not discharge their parental duty properly when he was a child. They did
not care for his education and, therefore, had forfeited their rights to claim
maintenance from him. It was held by the court that the option is with the
parent or the claimant, to proceed against any one of the child. It is the
individual responsibility of the children and the object of the Act is not to
punish the children but help the parents to maintain themselves in their old
age.
Muslim Women's (Protection of Rights on Divorce) Act, 1985 and Cr PC
Enforceability of an order of maintenance passed before the promulgaiton of

MWA
An order granting maintenance to a divorced Muslim woman before the
coming into force of the MWA is enforceable even after the promulgation of this
enactment. The husband divorced his wife36 and in 1983 she applied for
maintenance as an ex wife under the Cr PC which was granted to her. The
husband did not pay and she filed for the execution of the order. The magistrate
allowed execution and the husband was asked to pay within a period of one
month. Instead of complying with the order of the court he filed for its revision
on the ground that since the coming into force of the MWA the former order
would no longer be valid. The court held that there is no provision in the MWA
to the effect that sections 125-128 CrPC shall stand repealed insofar as
maintenance of Muslim women is concerned. There is also no provision in the
MWA with regard to enforcement of order of maintenance which has already
become final under the Cr PC which shows that final order holds good even
after MWA came into force.
35 Mahendra Kumar Gaikwad v. Gulabbai, 2001 Cri LJ 2111( Bom).

36 Shamshad Begum v. Md Noor Ahemad Khan, 2001 Cri U 2396 (Ori).

Maintenance under Cr PC; subsequent divorce and plea of application of MWA

Where both the parties are Muslims and they opt to deal with or under the
provisions of Cr PC and maintenance was granted to the wife under section 125
Cr PC and not under Muslim law, cancellation of maintenance order in favour
of the wife on the ground of divorce would not be proper.
A married Muslim woman37 was driven out of the house along with her
minor son by her husband who remarried. He was asked to pay maintenance to
the wife when she applied for it. Subsequently she applied for its enhancement
and he filed for its cancellation on the ground that he had divorced her and now
the case would be governed by the provisions of the MWA under which he had
no liability to pay her. The family court cancelled the maintenance of the wife
but continued the same for the son till his attainment of majority. Though there
was no formal option exercised by the couple, but since the wife applied for
maintenance under section 125 and the husband applied for its cancellation
under section 127 of the same enactment, the court presumed that it was a
sufficient indication of their opting of the provisions of Cr PC and under
section 127 divorce per se is not a ground for cancellation of maintenance. It
was held, therefore, that the order of maintenance passed in favour of the wife
was valid and could not be cancelled only because the husband subsequently
divorced her. However, in a parallel case38 the wife claimed maintenance against
her husband and was granted at Rs 75 p.m. for herself and Rs 25 p.m. for the
child, in 1981 and in 1984 she applied for its enhancement. The amount was
raised to Rs. 125 p.m. for the wife and Rs 50 p.m. for the child. She applied for
enhancement for the second time in 1988 and it was again enhanced to Rs. 300
p.m. and 150 p.m. respectively. The husband did not challenge any of these
orders. However, in 1990 he filed an application under section 127 claiming that
he had divorced his wife by a written talaknama and thereafter as per the MWA
he was not under any obligation to pay both the wife as well as the child. The
judicial magistrate quashed the order of maintenance but the additional judge
restored it in favour of the child till he attained majority. As regards the wife,
it was held by the Bombay High Court that in 1981 the wife obtained the order
while the marriage was subsisting. The MWA was passed later on and thereafter
the divorce followed. When the husband applied for cancellation the status of
the wife had changed from a wife to a divorced wife and that in itself is a ground
for the husband to seek closure of the order of maintenance in view of the
personal law of the parties.
VIII MUSLIM WOMEN'S

(PROTECTION OF RIGHTS ON DIVORCE) ACT, 1985
Constitutional validity of MWA

The wfde disparity in the interpretations of the provisions of the Act by the
various high courts bears testimony to the fact that this enactment, which right
37 Arab Chani Begum v. Md Azizur Rahman, 2001 Cri LJ 21 (Gau).

38 Shahanazbegum Kadar Baksh Sahikh v. Kadarbasha Usman Shaikh, 2001 Cri LJ 1215 (Bom).

Vol. XXXVll] Family Law and Succession 331
from its inception has been shrouded with controversies and contempt, needed
a closer scrutiny and finality by the Supreme Court. Labelled as anti women the
constitutionality of MWA was challenged and decided this year39 on the following
grounds that:
(i) the Act is un-Islamic, unconstitutional and it has the potential of

suffocating the Muslim women and it undermines the secular
character which is the basic feature of the Constitution;
(ii) there is no rhyme or reason to deprive the Muslim women from the
applicability of the provisions of section 125 Cr PC and consequently
the present Act must be held to be discriminatory and violative of
article 14 of the Constitution;
(hi) excluding the application of section 125 Cr PC is violative of articles
14 and 21 of the Constitution;
(iv) the conferment of power on the magistrate under sub section (2) of
section 3 and section 4 of the Act is different from the right of a
Muslim woman like any other woman in the country to avail of the
remedies under section 125 Cr PC and such deprivation would
make the Act unconstitutional as there is no nexus to deprive a
Muslim woman from availing of the remedies available under
section 125 Cr PC notwithstanding the fact that the conditions
precedent for availing of the said remedies are satisfied; and
(v) the remedy provided under the Act is illusory inasmuch as firstly,
she cannot get sustenance from the parties who were not only
strangers to the marital relationship which led to the divorce and,
secondly, wakf boards would usually not have enough means to
support such destitute women since they themselves are perennially
starved of funds and, thirdly, the potential legatees of a destitute
woman would either be too young or too old so as to be able to
extend requisite support. Therefore this provision denies to a woman
right to life and liberty and operates oppressively, unequally and
unreasonably only against her and is hence unconstitutional.
The Solicitor General appearing on behalf of the government contended that

personal law is the legitimate basis for discrimination if at all and, therefore,
subjection of a Muslim woman to a different law does not offend article 14 of
the Constitution. All India Muslim Personal Law Board contended with reference
to Shah Bano's case40 that the court has hazarded interpretation of an unfamiliar
language in relation to religious tenets and such a course is not safe and that the
aim of the Act is not to penalize the husband but to prevent vagrancy. The social
ethos of Muslims are different and, therefore, the enactment is consistent with
law and justice. The government contended that the object of the Act was to
codify the personal law and prevent inroad into the same; the impugned Act
39 Danial Latifi v. Union of India, AIR 2001 SC 3958.

40 Mohommed Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556.

resolves all issues bearing in mind the personal law of Muslim community and
the fact that the benefits of section 125 Cr PC have not been extended to Muslim
women would not necessarily lead to a conclusion that there is no provision to
protect her from vagrancies and from being a destitute and that, therefore, the
Act is not invalid or unconstitutional.
The court explored in detail the facts and judgment of Shah Banos case and
observed that in interpreting the provisions where matrimonial relationship is
concerned it must be kept in mind that the social conditions prevalent in our
society, whether it is the majority or the minority group, there exists a great
disparity in matters of economic resourcefulness between a man and a woman.
Our society is male dominated both economically and socially and woman is
assigned invariably a dependant role irrespective of the class of society to which
she belongs. On her marriage a woman though highly educated gives up all
other avocations and entirely devotes herself to the welfare of the family. Her
sacrifice is too enormous to be measured up in terms of money and when the
relationship breaks up she is told to fall back upon those who had no role in the
break up nor are connected to her that closely. Tracing the contents of the
relevant provisions the court discussed the scheme of the Act and noted with
disapproval that the judicial enforceability of the Muslim divorced woman's
right to provision and maintenance under section 3(1 )(a) of the Act has been
subjected to the condition of husband having sufficient means, which strictly
speaking, is contrary to the principles of Muslim law as the liability to pay
maintenance during the period of iddat is unconditional and cannot be
circumscribed by the financial means of the husband. The purpose of the Act,
the court observed, appears to be to allow the Muslim husband to retain his
freedom of avoiding payment of maintenance to his erstwhile wife after divorce
and the period of iddat.
The court held that a careful reading of the provision of the Act would
indicate that a divorced woman is entitled to a reasonable and fair provision for
maintenance. It was stated that Parliament seems to intend that the divorced
woman gets sufficient means of livelihood, after the divorce and therefore the
word "provision" indicates that something is to be provided in advance for
meeting some needs. In other words, at the time of divorce the Muslim husband
is required to contemplate the future needs of the wife and make preparatory
arrangements in advance for meeting them. Reasonable and fair provision may
include provision for her residence, food, clothes and other articles. The expression
"within" should be read as "during" or "for" and this cannot be done because
the words cannot be construed contrary to their meaning as the words "within "
would mean "on or before" and "not beyond" and therefore it was held that the
Act would mean that on or before the expiration of the iddat period the husband
is bound to make and pay maintenance to the wife and if he fails to do so then
she is entitled to recover it by filing an application before the magistrate. The
court further observed that nowhere has Parliament provided that the reasonable
and fair provision is to be paid to the woman only for the iddat period and not
beyond it. It would, therefore, extend to the whole life of the divorced wife unless
she gets married a second time. The court further held that the important section

in the Act is section 3 which provides that a divorced woman is entitled to obtain
from her former husband "maintenance" "provision" and "mahr" and to recover
from his possession her wedding presents and dowry and authorizes the magistrate
to order payment or restoration of these sums as properties. The crux of the
matter is that the divorced woman shall be entitled to a reasonable and fair
provision and maintenance to be made and paid to her within the iddat period
by her former husband. The wordings of the section indicate that the husband
has two separate and distinct obligations:
(1) to make a reasonable and fair provision for his divorced wife; and
(2) to provide maintenance to her but the time by which an arrangement
for payment of provision and maintenance should be concluded
mainly is "within the iddat period",
If the provisions are so read a man who has already discharged his obligations
of both "reasonable and fair provision" and maintenance by paying these amounts
in a lumpsum to his wife, in addition to having paid his wife's mahr and restored
her dowry as per section 3(1 )(c) and section 3(1 )(d) of the Act, would be excluded
from liability for the post iddat period maintenance.
The earlier interpretation that the Muslim husband is liable to maintain the
ex-wife only during iddat period and after that she was to run from pillar to post
in search of her relatives one after another and ultimately knock at the doors of
the Wakf Board was unreasonable and an unfair substitute of section 125 Cr PC.
However, the present interpretation would prove to be more beneficial to a
woman and therefore her exclusion from Cr PC provisions would not deprive
her of any substantial benefits.
The court did not pronounce the Act as unconstitutional but gave a modified
interpretation to its provisions to make it more equitable and humane. It put an
end to the attempt of errant husbands to evade their economic responsibility
towards their financially vulnerable former spouses and children. The
interpretation has made the husband primarily liable to take care of the financial
needs of the divorced wife. It is he who has to provide for her till she remarries.
The time when he is to pay her for her future needs is the time of iddat. In
addition he must also return all her properties including her mahr. In this manner
the person responsible for snapping the matrimonial ties has been made liable
to provide for the financial needs of the economically dependant spouse. Earlier
interpretations were confusing, varied and even diametrically opposite. The
Supreme Court has set at rest the confusion in this regard. Truly a welcome
decision.
Fixing quantum of a fair and reasonable provision

A divorced woman thus is entitled to get maintenance from her former
husband during the period of iddat. She is also entitled to get a fair and reasonable
provision for her livelihood till she remarries. The main criteria for fixing the
quantum of maintenance is the social status and financial capacity of the
couple at or during the time of divorce. The trial court fixed the maintenance

at Rs. 400/- p.m. for the iddat period when the husband was having a salary of
Rs. 25000/- p.m. and Rs. 30000/- income from the landed property per month.
The trial court also awarded Rs. 36000/- to the wife as reasonable and fair
provision to her. The husband did not pay it for eight years and the trial court
reduced it. The high court held that reduction of the amount was improper and
unjustified and restored the same in favour of the wife.41
Evasion of economic responsibilities

The court views the dilatory tactics adopted by the husband to evade his
economic responsibilities very seriously. In Shakil Ahmed v. Md Ismail42 the
wife applied for maintenance for herself and her minor daughter in 1996, which
the family court granted in their favour. The husband made an application for
recall saying that it was an ex parte order in 1998. The court below rejected it
but the recovery proceedings against the husband were stayed for a specified
period. The court held that the husband was lingering the matter on one pretext
or the other and intentionally and willfully avoiding appearance in the court. On
the date of listing the husband did not appear and the revision was dismissed in
September 1999. The reason was that none appeared in court for pressing the
revision and therefore the stay order was also vacated. The husband then made
a restoration application but no one appeared at the time of hearing and it was
again rejected. The court finally held that it was amply revealed that the applicant/
revisionist demonstrated attitude throughout to procrastinate at the proceedings
of maintenance allowance at every stage and he had behaved as an irresponsible
husband and a careless father and directed him to pay without any further delay.
Responsibility of the wakf board

The responsibility of maintaining a divorced Muslim woman (before the
equitable interpretation in Daniel Latifi's case)43 was now no longer with the
husband but was on her relatives who inherit from her. If none of these relatives
are available or are in a position to maintain her, the responsibility falls on the
wakf board. The wakf boards have limited funds but according to this case they
are to be utilized for the benefit of Muslim divorced women unable to maintain
themselves having no other relatives they can fall upon.
A Muslim woman44 whose husband divorced her filed a maintenance petition
against him under the Cr PC. She was advised to file the petition under the MWA.
The opposite parties to this petition were husband, her mother and the wakf
board. The husband was directed to pay the mahr and a sum of Rs. 1000/- for
the iddat period and the wakf board was also directed to pay maintenance to her,
while the court held that the mother was exempted from the liability due to lack
of sufficient means to maintain her daughter. Though the magistrate directed the
wakf board to pay her maintenance at the rate of Rs. 5000/- for a year the
41 Madayi Khyrunneesa v. Kuniyachari, 2001 Cri LJ 1228 (Ker).

42 2001 Cri LJ 632 (All).
43 Supra note 39.
44 Tripura Board of Wakfx. Tahera Khatoon, AIR 2001 Gau 103.

assistant commissioner failed to pay. She filed a third petition for realization of
the dues. On the application of the commissioner, adjournment was given to him
still he failed to pay. He instead, filed for a review of the order, which was
rejected by the magistrate. The dues were not paid even after that and a distress
warrant was issued against them subsequent to which they filed a writ petition
challenging the order and for appropriate relief. Their main prayer was that the
magistrate should have explored all the possibilities before ordering them to pay
maintenance to the woman. The question was whether the magistrate should
explore all other possibilities with each and every relative of the woman before
directing the wakf board to pay her. They contended that her relatives who are
entitled to inherit from her, would be under a prior obligation to maintain her
and the turn of wakf board would come only when none of such relatives is
present and is in a position to provide for her. So long as there is a single relative
the wakf board cannot be held responsible to pay maintenance to the woman.
They further contended that the magistrate should have recorded it in his order
as part of the finding as to whether any other relative of the woman was present
who was in a position to maintain her. Not having done so the order of the
magistrate was bad. Here the magistrate had not considered any other relative
of the woman and their financial capability to maintain her nor had recorded any
findings relating to that.
The court held that the resources with the wakf board are not unlimited,
but the language of the Act makes it clear that these sources are for those
women who are unable to maintain themselves and who also do not have relatives
who can come to her rescue. The cotirt directed the wakf board to deposit
Rs. 10,000/- in the court, which the woman was entitled to withdraw on proper
identification, and at the same time quashed the order of the magistrate asking
him to decide the case afresh.
IX INDIAN PENAL CODE, 1860
Matrimonial violence—sections 498A

Regular beatings of the wife by the husband after taking liquor,45
administering a glass of pesticides with intention to kill her,46 pushing a three
months pregnant wife on the stove whereby she received burn injuries and later
by pouring kerosene over her burnt her,47 teasing her and illtreating her for the
mistakes that can be pardoned48 and throttling her neck and throwing her dead
body in the well following continuous ill-treatment49 attracted the application of
section 498A to send the erring husbands to jail.
45 Bommidi Rajamallu v. State of A.P, 2001 Cri LJ 1319 (AP).

46 Mangilal v. State of Rajasthan, AIR 2001 SC 2937.
47 Kodadi Srinivasa Lingam v. State of A.P, 2001, Cri LJ 602 (A.P); Pawan Kumar v. State of
Haryana, 2001 Cri LJ 1679 (SC).
48 Mahadeo Ganpati Sutar v. State of Maharashtra, 2001 Cri LJ 1375 (Bom).
49 Clarence Pais v. Union of India, AIR 2001 SC 1151.

X INDIAN SUCCESSION ACT, 1925
Constitutionality of sections 57 and 213

Two writ petitions were filed in the Supreme Court, one challenging the
validity of section 213 of the Indian Succession Act, 1925 as unconstitutional
and the other to restrain the Union of India from enforcing the provisions thereof
against Indian Christians on the ground that it discriminates against them on
grounds of religion.50
Section 213(1) prohibits recognition of a right before the court as an executor
or a legatee under a will if the court has not granted probate of such will. The
petitioners contended that since the requirement of obtaining probate is applicable
to only Indian Christians , the section is violative of article 14 of the Constitution
and is void. It was rightly held by the court that the provisions of this section
are not applicable only to Indian Christians but are applicable to various classes
of people including Hindus and Parsis as defined in section 213(H) and
section 57(a) and (b) and therefore cannot be called discriminatory.
Genuineness of the will

Despite the powers conferred on a person to bequeath the totality of his
property in favour of anyone, there is an inevitable presumption under the law
that he would not ordinarily disinherit the natural heirs and prefer either strangers
or collaterals51 over them. The will would be treated as surrounded by suspicious
circumstances when the natural heirs are disinherited in favour of a total stranger
or estranged brother52 which the latter has to explain.53 Where the testator, an old
man of 84 years in paralytic condition and bedridden for life with damaged brain
cells bequeathed his property in favour of his wife and the daughter to the
complete exclusion of his sons; the propounders of the will could not establish
that the testator had sound disposal of mind at the time of the execution of the
will; the instrument was neither read over to him nor its contents admitted by
the testator; there was no endorsement to that effect by the registering authority
as well; the attesting witnesses were total strangers to the testators; it was held
that the will was not genuine and the excluded son was entitled to claim partition
of his share.54 Similarly, where the husband claimed that his wife had bequeathed
her properties in his favour completely disinheriting her children, without his
knowledge, it was held that this in itself gave rise to a suspicious circumstance
as the relation between them were very cordial and it was very unlikely for a
wife who was in good health to execute a will when she was only 51 years old
and not informing any one about it.55 In yet another case in the absence of issues
with the consent of the first wife the husband remarried and lived with both his
wives. When the husband was ill he was taken to another city by the second wife
50 Ramesh Kumar v. State of Maharashtra, (2001) 9 SCC 618.

51 State of Haryana v. Raj Kaur, AIR 2001 P& H 322.
52 Surendra Bhatia v. Punam Bhatia, AIR 2001 Raj 338.
53 Kishan Singh Ahluwalia v. Sheela Saxena, AIR 2001 Mad 250.
54 M Rajeshwari v. M Ganeshan, AIR 2001 Mad 379.
55 P Sivasubramaniam v. S Karthikumar, AIR 2001 Mad 370.

and she allegedly got executed a will in her favour and that of her adopted son
totally disinheriting the first wife. She, thereafter, got him admitted in a hospital
therein where he died. The courts held that the will was surrounded by suspicious
circumstances and was not a genuine one as no explanation was given with
respect to the fact as to why instead of admitting him in the local hospital he was
taken to another city and why his first wife who had given consent to the second
marriage was totally disinherited.56 However, the Kerala High Court held that
the mere fact that the will was executed by the testator in favour of the niece
disinheriting his wife and children did not give to suspicious circumstances
since the scribe and other witnesses saw the testator signing the will and the
testator also saw the witnesses attesting the document.57
The mere fact that in the event of death of both the witnesses the driver of
the car of registering officer was made the identifying witness would not be a
suspicious circumstance where the will was executed at the house of the testator
in the presence of the registering officer and it was held that the daughter who
was a beneficiary under the will can be granted letters of administration.58 Where
at the time of the execution of the will, the testatrix though was suffering from
diabetes, hypertension etc and was 80 years old but otherwise in good health,
revoked her earlier will and executed a new one due to certain change in
circumstances which could be reasonably explained and one attesting witness
was called for proving the execution of the will and his testimony was regarded
by the court as reliable, it was held that there was no suspicious circumstance
and the will was genuine.59
Onus of proof
The onus of proving that the will is a forged one is on the person who alleges
it. Mere fact that the testatrix was blind and was old would not be sufficient to
discharge that burden. The testatrix, an 80 year old lady60 bequeathed her immovable
properties in favour of the male decsendants of her children but did not give her
sons and daughters anything out of it. The facts pointed to the genuineness of the
will as well as its execution which was proved by the propounder of the will, the
advocate who prepared the will and the attesting witness, The court held that the
will was genuine and the plaintiffs were entitled to get a probate in their favour.
Rules relating to construction of will

In determining the real intention of the testator the entire document has to be
read as a whole and no word, phrase or clause should be ignored If there are any
ambiguous or mutually contradictory clauses which appear in the will they have
to be interpreted and given meaning in accordance with the intention of the testator.61
56 Unnamalal Ammal v Mayavakonar, AIR 2001 NOC 35 (Mad).

57 K Madayya Shetty v. Durgaparameshwari, AIR 2001 Ker 77.
58 S. 278; Cherichi v. Ittianam, AIR 2001 Ker 184.
59 Sampathlakshmi v. E A Murthy, AIR 2001 Mad 355.
60 KS. Krishnakumar v. C.D. Suresh Kumar, AIR 2001 Mad 279.
61 Mandala Madhava Rao v. Mandala Yadagiri, AIR 2001 AP 407.

In matters of construction of the wills decision in other cases do not and

cannot afford sufficient guidance. It is not proper to interpret a will by searching
for other cases English or Indian. Intention is to be gathered from the words of
the documents bearing in mind its circumstances.62
Where the language of the will is clear and displays an unequivocal intention
on the part of the testatrix to bequeath the property in favour of the heirs but
giving them only a limited right in the property the same should be upheld and
in the absence of any ambiguity should not be interfered with. A person has the
power to bequeath a limited estate in favour of the beneficiaries. The testatrix63
gave the property to two of her brother's sons, and clearly mentioned that they
would not have any power to alienate the same. However, the male descendants
of these beneficiaries would have all the powers over the property including a
power to dispose it off in the manner they please. The limited right under law
is non alienable and non heritable and thus on the death of the beneficiary the
estate would not pass to the widow as her property. On the death of the husband
the life interest would revert to the original owner in the absence of sons who
were intended to be the absolute owners of the property.
Establishment of the right as an executor or a legatee under the will

No right as an executor or legatee can be established in any court unless a
court of competent jurisdiction has granted a probate of the will under which the
right is claimed or has granted letters of administration in respect of the will.64
The prohibition under section 213 is regarding establishing any right under the
will without getting probate or letters of administration and that sanction cannot
be understood as one by which the vesting of the right as per the provisions of
the will is postponed until the obtaining of the probate or letters of administration.
The will will take effect on the date of the death of the executant of the will and
what section 213 says is that the right as executor or legatee can be established
in any court of justice only if the probate or letters of administration is obtained.
The necessity to obtain probate or letters of administration as provided under
section 213(1) of the Act arises only when the right as executor or legatee is
sought to be established in a court and hence that section does not prohibit the
use of the will which is unprobated as evidence for purposes other than
establishment of right as an executor or as a legatee. So the requirement of
obtaining the probate becomes relevant at the time when the establishment of
right as an executor or legatee on the strength of a will is sought to be made in
a court of justice.
Revocation of the will

A will by its very nature is revocable and its destruction by the testator is
one of the modes of its revocation if that was done with the intention of revoking
the same. Merely because the will is not forthcoming presumption cannot be
62 Muninanjappa v. R. Manual, AIR 2001 SC 1754.

63 Rajinder Singh Chowdhary v. S. Manjit Singh Chowdhary, AIR 2001 Del 1564.
64 Cherichi, supra note 58.

drawn that the testator has destroyed the will, as there must be positive evidence
to show that the will was destroyed by the testator with the intention to revoke
the same. Thus, where65 no evidence existed to show that the will was destroyed
by the testator with the intention of revoking it, the possibility of the testator
revoking the will by destroying the same is very remote for the reason that there
was a specific provision in the will that in case the testator wanted to revoke the
will he could do that by executing a registered document.
Delay in filing for probate has to be explained

An application for grant of probate should ordinarily be filed within a
reasonable time period from the death of a person. In cases where there is an
extraordinary delay in filing of the probate the delay has to be explained. In the
case under review66 the heirs of the deceased nearly ten years after his death had
requested the bank to close his accounts as no will was there and they also did
not want to act upon the will. But a petition was filed for grant of probate after
21 years of the death of the deceased. The applicant initially did not give any
satisfactory explanation for the delay at the time of the filing of probate but
merely stated that since the application was on a prescribed format and the
format did not provide for any such clause no explanation was given. He
maintained that the will was found 21 years later in the cupboard of the mother
of the deceased, which was held by the court to be an unnatural story and
unreliable. The court, accordingly, rejected the petition.
Court not competent to decide suits relating to title or issues of legality of marriage
The court in its testamentary jurisdiction does not decide title to the property.
While granting probate what the court considers is that the will is genuine and
the last will of the holder. Thus, any person who wants to pursue a litigation with
respect to the title of the property can pursue the case in an appropriate court
and not the probate court.67
Similarly, a proceeding for grant of succession certificate is summary in
nature and no rights are finally decided in such proceedings. Section 387 of the
Act categorically provides that no decision upon any question of right between
the parties shall be held to bar the trial of the same question in any suit or other
proceedings between the same parties. Thus, section 387 permits the filing of a
suit or other proceedings even though a succession certificate might have been
granted or refused. Merely because issues were raised and/or evidence was led
in respect of an application for succession certificates, it does not mean that the
findings given here are final and operate as res judicata. So in a subsequent suit
the crucial issues must be decided afresh, untrammelled or uninfluenced by any
finding made in the proceedings for the grant of succession certificates.
On the death of a TISCO employee his wife along with her minor son and
daughter filed for succession certificates.68 She claimed to have married him
65 Ibid
66 John Francis Gonsalves v. Agnes Mary Conception Rebello, AIR 2001 Bom 372.
67 Everest Agencies, Bombay v. Ishrat Rafique Sharif AIR 2001 Bom 377,
68 Vijaylakshmi v. K Simachalan, AIR 2001 Jhar 23.

after the death of her first husband. The husband had nominated her in his
insurance policy and had also appointed her as a beneficiary under the limited
employee scheme. The claim of the mother, on the other hand, was that his son
died a bachelor and she relied on a declaration form filed by the deceased in his
service tenure where he had given his status as unmarried. The medical document
also showed the name of his parents and none was written at the place meant
for his wife. The wife claimed that her first husband from whom she had two
issues died and she married the deceased in a temple , though she did state that
no saptapadi or requisite customs and ceremonies were observed. Two children
were born to her from the deceased. On the strength of this evidence the trial
court rejected her claim and refused the grant of succession certificates in her
favour and held that the applicants were at liberty to get their right, title and
interest declared in respect of estate left by deceased by a competent court of
civil jurisdiction notwithstanding the stand taken in the present judgment.
XII CONCLUSION
The year 2001 saw the pronouncement of certain important judgments and
at least three challenges to the constitutional validity of family law provisions.
In one a modified interpretation was given to the provisions to make it equitable69
and the other two were dismissed, one rightly70 and the other incorrectly.71 In this
maze of multiplicity of personal laws with the religion of the party as the
applicability criteria, and an automatic shift in their application with the conversion
of the parties, the court considered the question of retention of some provisions
by a convert of his renounced religion at his option. The division bench though
was divided on this issue;72 a wrong approach was taken by one of the members,
while the other adopted a self-contradictory approach though with the correct
final verdict. A glaring error of law was committed by the Madhya Pradesh High
Court73 when they interpreted section 12 of the Hindu Minority and Guardianship
Act in isolation without looking into the relevant provisions of the Hindu
Succession Act and appointed as guardian of property of a minor the same
person who had thrown out the minor while retaining her properties illegally.
Dowry continued to claim the lives of young married women and matrimonial
violence consumed young blossoms by the so-called stove bursts and accidental
kitchen fires; defences which were put forward by the husbands were accepted
by the courts. Finally, Daniel Latifi's case74 put an end to the attempt by erring
Muslim husbands who tried to shake off their economic responsibility with
impunity forcing their ex wives to approach her various relatives and ultimately
the cash starved wakf board with a begging bowl in her hand for her sustenance.
69 Daniel Latifi, supra note 39.

70 Surendra Bhatia v. Punam Bhatia, supra note 52.
71 Henry Fernandes v. Succorinha Fernandes, supra note 3.
72 Ajit Datt v. Ethel Walters, supra note 1.
73 Sweta v. Dharma Chand, supra note 25.
74 Danial Latifi, supra note 39.

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13

FAMILY LAW AND SUCCESSION

IMPORTANT JUDICIAL pronouncements under Christian law (adoption); Indian

II VALIDITY OF ADOPTION UNDER CHRISTIAN LAW

Permissibility of retention and applicability of pre-converted customary laws for Christians

* LL.M., Ph.D., Reader, Faculty of Law, University of Delhi.

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2 AIR 1922 PC 14.

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and domicile save where he is forbidden to do so by law or any tenets of his

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Ill INDIAN DIVORCE ACT, 1869

Constitutional validity of section 10

3 Henry Fernandes v. Succorinha Fernandes, AIR 2001 Bom 208.

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Objections relating to jurisdiction of the court

Grounds for divorce under the pre-amended Act

AIR 2001 Ker 350.

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Damages awarded for matrimonial offences committed by the spouses

IV DOWRY PROHIBITION ACT, 1961

Mere demand of dowry prior to marriage is an offence

9 Sunil Masih v. Elizabeth Daisy Masih, AIR 2001 MP 226.

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Restoring the property of the deceased to her relatives

12 Siddesha v. State of Belur, Police, 2001 Cri LJ 38 (Kant).

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Harassment in connection with dowry—a pre-requisite for application of DPA

13 Satvir Singh v. State of Punjab, AIR 2001 SC 2828.

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14 2001 Cri LJ 2556 (SC).

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V FAMILY COURTS ACT, 1984

Counselling by the family counsellors

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Interpretation of the term "family" and jurisdiction of family courts

VI GUARDIANS AND WARDS ACT, 1890

Welfare of the minor as of primary importance

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In another case24 the husband committed suicide due to persistent quarrels

24 Balbir Kaur v. Smt Jit Kaur, AIR 2001 P&H 124.

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paternal uncle was appointed guardian of the property of the minor.

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Under section 125 Criminal Procedure Code, 1973

Plea of no means to pay

26 AIR 1978 SC1239.

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"Wife includes an ex wife"

Effective date of order of maintenance

Right of parents to seek maintenance from children

27 2001 Cri LJ 1816 (Kant).

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Muslim Women's (Protection of Rights on Divorce) Act, 1985 and Cr PC

Enforceability of an order of maintenance passed before the promulgaiton of

35 Mahendra Kumar Gaikwad v. Gulabbai, 2001 Cri LJ 2111( Bom).

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Maintenance under Cr PC; subsequent divorce and plea of application of MWA

VIII MUSLIM WOMEN'S